I am a Senior Political Contributor at Forbes and the official 'token lefty,' as the title of the page suggests. However, writing from the 'left of center' should not be confused with writing for the left as I often annoy progressives just as much as I upset conservative thinkers. In addition to the pages of Forbes.com, you can find me every Saturday morning on your TV arguing with my more conservative colleagues on "Forbes on Fox" on the Fox News Network and at various other times during the week serving as a liberal talking head on other Fox News and Fox Business Network shows. I also serve as a Democratic strategist with Mercury Public Affairs.

Proposed New Mexico Law Would Send Rape Victims Who Abort Pregnancies To Prison For 'Tampering With Evidence'

New Mexico GOP Repesentative Cathrynn Brown has introduced a bill in the State’s House of Representatives that would prohibit women who have been raped from obtaining an abortion—or face a sentence of up to three years in prison as punishment for committing the offending act.

The legal theory behind the proposed legislation?

Tampering with evidence of a crime…seriously.

While the legislation is fairly assured not to become law as New Mexico’s legislative bodies are controlled by Democrats, the myriad of issues such a bill presents is truly extraordinary—staring with the very notion of an unborn fetus being classified as ‘evidence’.

Evidence is defined as follows:

“n. every type of proof legally presented at trial (allowed by the judge) which is intended to convince the judge and/or jury of alleged facts material to the case. It can include oral testimony of witnesses, including experts on technical matters, documents, public records, objects, photographs and depositions (testimony under oath taken before trial). It also includes so-called “circumstantial evidence” which is intended to create belief by showing surrounding circumstances which logically lead to a conclusion of fact. Comments and arguments by the attorneys, statements by the judge and answers to questions which the judge has ruled objectionable are not evidence. Charts, maps and models which are used to demonstrate or explain matters are not evidence themselves, but testimony based upon such items and marks on such material may be evidence. Evidence must survive objections of opposing attorneys that it is irrelevant, immaterial or violates rules against “hearsay” (statements by a party not in court), and/or other technicalities.”

Clearly missing from the definition is the use of a living human being as an object capable of submission as evidence in any legal trial scenario. Considering that—for so long as I can recall—pro-life advocates have argued that a fetus is a living person from the moment of inception, one wonders why Rep. Brown would now suggest that the fetus is an ‘object’ subject to entry into evidence in a rape trial as it seems reasonable to imagine that such a concept would be highly offensive to both pro-life and pro-abortion forces.

More importantly, consider that proving that a victim is—or was—pregnant is completely irrelevant to making a rape case! Unless New Mexico intends to only prosecute accused rapists or practitioners of incest who impregnate their victims, the existence of a fetus is no evidence of rape or incest whatsoever. Not only is pregnancy not evidentiary of rape, it could not even rise to the level of creating a presumption of a crime. If it could, then any pregnant woman would be presumed to have been raped while a women who did not become pregnant would be presumed not have been sexually assaulted.

So, how can aborting a pregnancy ever be tampering with evidence when a pregnancy—or lack thereof—is never evidence in the first place when prosecuting a case for rape or incest?

What must be proven in a rape case has absolutely nothing whatsoever to do with whether or not the victim became pregnant. Further, if evidence of pregnancy has some value to the case (which it rarely would), evidence is plentiful through the existence of the many records that would establish that the victim had, in fact, been pregnant including, ironically, the medical transcripts of an abortion.

“Sexual assault experts may use the terms interchangeably, but generally recognize that the two terms are on a continuum of criminal sexual behavior, including forcible sexual penetration against (and between) females, forcible sexual penetration against (and between) males, non-forcible sexual assault against minors (and the physically helpless and the mentally incapacitated), sexual penetration of the vagina and anus with an object or body part other than the penis, marital rape, statutory rape, incest, fellatio, and anal intercourse.”

Nowhere do the definitions indicate that pregnancy—or lack thereof—is an element of a crime or indicative that a crime may have taken place.

Pat Davis of ProgressNow New Mexico, a progressive nonprofit that is opposing the bill, told The Huffington Post that such a move is blatantly unconstitutional, adding, “The bill turns victims of rape and incest into felons and forces them to become incubators of evidence for the state. According to Republican philosophy, victims who are ‘legitimately raped’ will now have to carry the fetus to term in order to prove their case.“

Huffington Post is also reporting that Rep. Brown has today issued a statement seeking to defend her legislative offering, suggesting that the purpose of the bill is to punish the individual who commits the rape or incest and then assists or facilitates an abortion to destroy evidence of the crime. To that end, Brown said, “New Mexico needs to strengthen its laws to deter sex offenders. By adding this law in New Mexico, we can help to protect women across our state.”

Apparently, Ms. Brown is under the impression that rapists stick around to assist their victims with the difficult and horrifying aftermath of the crime.

If it is, indeed, Representative Brown’s true intent to punish only the rapists who somehow play a role in procuring an abortion for their victims—as she has noted in her statement—Brown is going to need a few lessons in writing legislation as her bill clearly reflects a very different intent.

“B. Tampering with evidence shall include procuring or facilitating an abortion, (thereby including the victim, physician or anyone else facilitating an abortion) or compelling or coercing another to obtain an abortion, of a fetus that is the result of criminal sexual penetration or incest with the intent to destroy evidence of the crime. (emphasis added)”

If Representative Brown seeks criminal status solely for those who compel or coerce another to obtain an abortion in a case of rape—and the law is not designed to target the victim herself as Brown has suggested—she certainly would have wanted to omit the first part of Paragraph “B” which clearly turns a rape victim into a criminal should she ‘tamper with the evidence’ by obtaining an abortion.

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Don’t be confused. Of course those are all valid evidence and all that would be required to prove pregnancy. The thing is, that denying the right to abortion would not prove rape at all – it would only prove that the victim was pregnant-not exactly the most difficult thing to prove in a rape case.

What if the woman waits to report the rape until after the “normal” DNA evidence is gone? (No reason to question a “late” report of rape—women don’t lie about rape, we are told) I asked what I believe are some pertinent questions about this proposed law and its relation to preserving evidence and trying to prevent the rapist from pressuring rape victims to abort “with the intent to destroy evidence of the crime.”

So what if a woman waits to report a rape until after the normal DNA evidence is gone? It is not incumbent upon a victim in any crime in any penal code in any state in America to be responsible to preserve evidence! They are the victim-not the prosecutor. They are the victim-not the police. Surely you can see the innumerable myriad of problems this creates for a legal system when the victim is suddenly responsible to collect evidence, preserve evidence and be criminally responsible for not doing so.

I agree that the victim should not have a duty to preserve evidence of the crime against him or her, although I am not sure that there are NO laws that do so in other contexts. As I wrote in my reply to your comment on page 4, the intent of the law, as its author stated, was to make it a crime for the RAPIST to cause particular evidence of his crime to be destroyed.